Exhibit
10.6
NOVELL, INC.
2009
OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
This RESTRICTED STOCK UNIT AGREEMENT, dated as of
, 20
(the “Date of Grant”),
is delivered by Novell, Inc. (the “Company”) to
(the “Grantee”).
RECITALS
A. The Novell,
Inc. 2009 Omnibus Incentive Plan (the “Plan”) provides
for the grant of restricted stock units in accordance with the
terms and conditions of the Plan. The Compensation Committee of the
Company’s Board of Directors (the “Committee”)
has decided to make a grant of restricted stock units as an
inducement for the Grantee to continue his or her employment with
the Company, or an Affiliate or a Subsidiary (as such terms are
defined in the Plan), and promote the best interests of the Company
and its shareholders. A copy of the Plan is available at
https://innerweb.novell.com/organizations/finance/shareholder_services/
or by contacting the Company’s Director of Shareholder
Services.
B. The Plan is
administered by the Committee (as defined in the Plan).
NOW, THEREFORE, the parties to this Agreement, intending to be
legally bound hereby, agree as follows:
1. Grant
of Restricted Units . The Company hereby grants the Grantee
restricted stock units (the “Restricted Units”). The
Restricted Units are subject to the terms and conditions set forth
in this Agreement and the Plan; provided, however , that if
an executed, written agreement between the Company and the Grantee
(an “Employment Agreement”) includes provisions that
differ from those set forth in this Agreement, the provisions of
the Employment Agreement will apply to the extent not contrary to
the terms of the Plan.
2.
Restricted Unit Account . Restricted Units represent
hypothetical shares of common stock of the Company
(“Shares”), and not actual Shares. The Company shall
establish and maintain a Restricted Unit account, as a bookkeeping
account on its records, for the Grantee and shall record in such
account the number of Restricted Units granted to the Grantee. No
Shares shall be issued to the Grantee at the time the grant is
made, and the Grantee shall not be, nor have any of the rights or
privileges of, a shareholder of the Company with respect to any
Restricted Units recorded in the account. The Grantee shall not
have any interest in any fund or specific assets of the Company by
reason of this award or the Restricted Unit account established for
the Grantee.
3.
Vesting . The Restricted Units shall vest in accordance with
the provisions set forth in Exhibit A attached hereto; provided
that the Grantee is employed by, or providing service to, the
Company, an Affiliate or a Subsidiary (as such terms are defined in
the Plan) on the applicable Certification Date (as defined in
Exhibit A attached hereto).
Unless the Committee
provides otherwise, vesting of the Restricted Units granted
hereunder shall be (i) tolled during any unpaid personal leave
of absence and (ii) tolled as of the 91st day of any other
leave of absence.
4.
Termination of Restricted Units . Except as otherwise
provided in an Employment Agreement, if the Grantee ceases to be
employed by, or provide services to, the Company, an Affiliate, or
a Subsidiary for any reason before all of the Restricted Units
vest, any unvested Restricted Units shall automatically terminate
and shall be forfeited as of the date of the Grantee’s
termination of employment or service. No payment shall be made with
respect to any unvested Restricted Units that terminate as
described in this Paragraph 4.
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5.
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Payment of Restricted Units .
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(a) If and
when the Restricted Units vest, the Company shall issue to the
Grantee one Share for each vested Restricted Unit, subject to tax
withholding as described below, within two (2) months after
the applicable vesting date.
(b) The
issuance of Shares to the Grantee pursuant to this Agreement is
subject to all applicable foreign, federal, state, local and other
taxes. All obligations of the Company under this Agreement shall be
subject to the rights of the Company to withhold amounts required
to be withheld for any taxes, if applicable. The Grantee shall be
required to pay to the Company, or make other arrangements
satisfactory to the Company to provide for the payment of, any
foreign, federal, state, local or other taxes that the Company is
required to withhold with respect to the Restricted Units. Subject
to Committee approval, the Grantee may elect to satisfy any tax
withholding obligation of the Company with respect to Restricted
Units by having shares withheld up to an amount that does not
exceed the minimum applicable withholding tax rate for federal
(including FICA), state, local and other tax liabilities.
(c) The
obligation of the Company to deliver Shares when Restricted Units
vest shall be subject to all applicable laws, rules, and
regulations and such approvals by governmental agencies as may be
deemed appropriate by the Committee, including such actions as
Company counsel shall deem necessary or appropriate to comply with
relevant securities laws and regulations.
6. Change
of Control . If a Change of Control (as defined in the Plan)
occurs, the provisions of the Plan and the terms of any Employment
Agreement between the Company and the Grantee applicable to a
Change of Control shall apply to the Restricted Units.
7. Nature
of Grant . In accepting the Restricted Units, the Grantee
acknowledges that: (i) the Plan is established voluntarily by
the Company, it is discretionary in nature and it may be modified,
amended, suspended or terminated at any time, unless otherwise
provided in the Plan and this Agreement; (ii) the grant of the
Restricted Units is voluntary and occasional and does not create
any contractual or other right to receive future grants of
restricted stock units, or benefits in lieu of restricted stock
units, even if restricted stock units have been granted repeatedly
in the past; (iii) all decisions with respect to future
restricted stock unit grants, if any, will be at the sole
discretion of the Company and the Committee; (iv) the
Grantee’s participation in the
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Plan shall not create a
right to further employment with the Company, an Affiliate, or a
Subsidiary and shall not interfere with the ability of the Company,
an Affiliate, or a Subsidiary to terminate Grantee’s
employment relationship at any time with or without cause;
(v) the Grantee is voluntarily participating in the Plan;
(vi) the Restricted Units are not part of normal or expected
compensation or salary for any purposes, including, but not limited
to, calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments; (vii) in
the event that the Grantee is not an employee of the Company, an
Affiliate, or a Subsidiary, the Restricted Units grant will not be
interpreted to form an employment contract or relationship with the
Company or with any Affiliate or Subsidiary; (viii) the future
value of the underlying Shares is unknown and cannot be predicted
with certainty; (ix) the value of Shares acquired upon vesting
may increase or decrease in value, and n
